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tv   Key Capitol Hill Hearings  CSPAN  January 5, 2015 6:00pm-8:01pm EST

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it does not mean we have to respond in a kit for cap manner. pursuing things like the bilateral investment treaty. inside the system as well now like a foreign ministry, not playing the roles that they did under that administration. taking the full scope of how to take this into account is going to be critical. those governments, i didn't see anything particularly new -- on those comments, i didn't see anything particularly new there. it is interesting that someone at his level chose to do so, but i did not find it surprising. >> let me just add a couple of things to chris' remarks. the recent conference on chinese foreign-policy is important because it does signal a number
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of things, certainly a number of more proactive chinese foreign-policy and the xi jinping claiming, of course that china is now going to have the brainpower -- the great power foreign-policy with special characteristics. but the question remains, i think, as to whether putting the periphery at the top really means recognition of deterioration of chinese relations with the neighborhood therefore leading to an adjustment in chinese foreign-policy going forward. if that is the case, then what is the adjustment? what we are seeing so far is china's emphasis on economic integration and trying to give the neighbors economic incentives to connect them through the 21st century maritime silk road and the economic -- the traditional economic silk
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road, to try to find them -- bind them more to china's own development, and, in turn, to assist china's own development. this is not just about getting. it's about giving. this is what china means by a win-win approach. i think the jury is still out as to whether we are going to see a reduction in some of china's more provocative but -- provocative policies, particularly in the territorial disputes. i think that is what the united states is particularly concerned about. we certainly don't want to see continued intimidation of china's neighbors. i would agree that on that point -- that, on that point it has been said before that china doesn't want to push the united out of the region, but it is important at this juncture for a leader at that level to be saying not only that the u.s. remains the main, core
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superpower in the world, but that china wants to integrate itself into the prevailing international system. now, the devil is in the details. as mike talked about earlier the asian infrastructure investment bank will be a critical test of whether or not china is really going to adopt the rules and norms that have been developed over the course of many years by major international donors. but i think that the statement itself is important and we should watch out for china's behavior. >> bernard, university of new hampshire. i want to return to tpp, both on the japan site and with regard to china. matt and mike are very optimistic in terms of what is needed for the united states but there is some talk in tokyo that the prime minister cannot go forward until the upper house elections later this spring.
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is it your view that that is realistic, or is that more of a bloc then is realistic to think about? secondly, in china, a year ago at this time, there was much consideration in beijing about possibly joining tpp. governor huntsman has resurrected the issue, as have others. can both of you speak to that point? on the chinese side and whether in japan there is as much concern on tpp as we say there needs to be? >> i can start. i'm sure others will have use -- views. there is always another election in japan. [laughter] i don't think that that should be -- i don't think it is an obstacle to japan and prime minister of a -- prime minister abe moving
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forward. they are close. with a little political capital on his side -- and i do think that in the scheme of things it is not a huge amount of political capital to invest in this decision, in the scheme of things. he could get this done. yeah there will be another , election. remember he made the decision to join tpp ahead of an upper house election, against the odds, and that required quite a bit of political capital. i actually think that with this new mandate and his having focused on economics as the right course and only course for japan, i think the iron is hot and it is time to strike. by the way, since i now have a chance to affirm what mike said, i certainly agree we need to do more and the president personally needs to do more to continue to show that we are willing to move forward on trade promotion authority and get our end of the bargain done, but abe holds a lot of the cards. on china i will offer my two
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, cents on china, which is that the tpp strategy is to pull china into the rules-based system in asia. tpp is the vehicle for doing that. i think when japan joined tpp last year -- sorry, the year before -- it really sent a message to beijing, in that you saw the conversation in beijing change. whether they are to -- ready to join in the short term is not clear to me. it certainly got their attention. i think they understand and agree that they need to be part of this system of rules that is being negotiated in tpp. i would expect eventually they will join something in the region that is i think, based on the tpp agreement going forward. it may be called something different. grandma -- >> i would agree that a 12-party negotiation like tpp someone is always holding an election. these things happen.
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we have our own work to do here. since the election, all the leaders, the president, incoming majority leader mcconnell, speaker boehner, the new chairman, all the leaders have said the right things. what matters now is what they do . it is a fairly tricky process, particularly the president will need to manage his own parties politics -- party's politics of trade, which are compensated and difficult. -- which are complicated and difficult. it can certainly be done. the model is the trade act of 1988, which took about five months, start to finish, you had the divided government with a republican president in the last year of his term and a democratic congress. these things can be done. it will take time and we will really need to see the action happen and behavior change. the second question about china joining tpp, like matt, i don't know if they will join tpp as it exists or whether it will be something else.
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but i notice at apec meetings, an interesting conversation began with the chinese initiative of discussing, what is the sort of future of asia-pacific trade after the completion of that agreement, which china is a party and the united states is not, and the completion of tpp, where the u.s. is a party and china is not? constructive discussions certainly from a commercial standpoint they are fairly obvious, but i would note a genuine interest on the part of the chinese. >> the front? >> thank you. i am from the university of toronto. i would be interested in the team's reflection and reactions to the question of wildcards. things you have not thought of that might come from outside the region or outside the united states.
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let me just suggest, the president may need to decide on keystone. if he decides know that creates energy issues for canada and where they might export two, which might suit the chinese -- export to, which might suit the chinese very nicely. watching canada, that creates an issue for america's closest ally. the second issue, of course, with climate talks relating to energy, where do they get their -- where does china get its energy? paris. the u.s. and china making a deal that might put some pressure on india and australia. the second issue is the broad area of cyber. in a situation where there was something a little more important from intellectual property point of view than movie scripts and indiscreet e-mails, or even created a physical attack traceable somewhere what happens? because clearly, there are various people in discussions about how the internet should be governed which india and china
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seem to be redefining multi-stakeholderism. the third thing is problems outside of the region, where there are issues with asia's inner -- energy supply or turbulence in the middle east. or if russia starts to get aggressive and creates problems for the world is trying to figure out what to do with russia and china and they might -- china and india might not agree. are there others that you have thought of or perhaps are going to write about? thank you. >> while my colleagues think about this, let me use your question to make a shameless plug. every january, the last few january's, we have all gathered here to do an exercise we call asia forecasting. we are scheduling that for january 29. you are all welcome to join us. we arm the audience with clickers and it is basically the
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panel versus the audience, predicting what will happen in 2015. nobody wins or loses, because it is only january. this year, we will have two groups and we will split ourselves into two groups. and one group will look at geo strategy, but especially alignments. what will happen to the japan-korea? u.s.-india? so forth? we will start making predictions about the chessboard in asia. the second panel will start predicting or handicapping the prospects for economic reform in india and japan and so forth and in china, of course. you are all welcome to join. we put the questions up, we ask the audience, we debate. you gave me a good idea for a wildcard session. i'm not sure. we will have to find a technological way for people to put their wildcards up so that we can comment on them. please join us on the 29th. in terms of wildcards, north
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korea is always a big one. especially since they are probably prepared for another nuclear test and don't let crises go without a chance to escalate them. i think you are right to mention the middle east, which will exacerbate problems in the first -- the problem of resources in asia-pacific. it is about where the carrier battle groups and the marines spend their time, because that area of responsibility stretches to southwest asia. these can all affect asia. historically, the last sheet of years of administrations on asia are often not very good. george herbert walker bush, some of you will recall, had a pretty unfortunate visit to japan in his -- some people may have been on the trip. it culminated with him vomiting on the japanese prime minister. bill clinton, bill clinton in his last sheet of years had the
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famous japan passing where he traveled to china. really unsettled u.s.-japan relations. frankly, the george w. bush administration had a grouping for a north korea deal that fell apart and left group questions in all three cases among many in the region. the problem was political bandwidth at home. you know, when you are in your final years, it gets pretty tired. a lot of the strategic heavyweights that started the administration are gone. talent comes in, but you spend a lot more time dealing with the race to succeed you. these wildcards can have an even bigger impact in the last two years of an administration and are worth pointing to, but i filibustered enough so that we can hear a few more. , i will touch on a couple that were not -- wax i will -- >> i will touch on a couple that were not so much mentioned in the report. you mentioned energy and oil
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prices spiraling down in a couple of ways. one, if the india import bill drops dramatically, which is expected, they did put up a lot of trade measures over the last couple of years. there might be reduced pressure in delhi to put up some of these barriers to slow down these bills. on the downside it also means that the impetus behind economic reform in india, which narendra modi was partially elected on, i -- could also be hampering the economy. there is also the u.s. changing presence in afghanistan. not even as a result of that but it is if you see increased -- could also terror attacks on india, the perception right now is that reduced presences will change the role in india. it is directly related to whether or not there will be that perception. we did talk about needing to collaborate with india on afghanistan.
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that they have not been meeting as often as they should. the last one in south asia is pakistan. the pakistan military -- i just did a lecture tour across india. they continue to press on -- why does america continue to support the government of pakistan? i pointed out that six months ago or longer, they were successful and sustained against insurgents on their territory and that has only escalated. since the horrific attack recently in pakistan against the schoolchildren. in u.s.-india relations, it is a strange lens if pakistan continues and is successful in its own domestic war on terror the united states would want to . support that, which by its nature would push us a bit away from india. afghanistan and pakistan -- i don't think that anyone would call afghanistan a wildcard, it is clearly one of the biggest issues in foreign policy this year. but pakistan is another one. >> since there are never any wildcards in southeast asia -- >> every day is just boring.
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we always know exactly what to expect. i think that southeast asia will surprise us this year. i would love to thailand. thailand is a powder keg politically. the coup government, military government has said that they can't do elections this year that they had hoped to do, and they will probably do them in 2016. i personally believe they won't do those until other events that we could talk about, probably not on tv, happen. but i think that t-- the thais are getting fed up. the economy is not performing at the level that it should. when the business community turns against the government for -- or starts to have stories about it, we should be watching for some political developments in thailand.
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the other thing that will surprise us is the new president of indonesia who i think is going to assert himself much more seriously in foreign affairs and insecurity issues than we thought -- and in security issues than we thought. i think that will have an impact on southeast asia and asean. the last one is the arbitration -- arbitration tribunal, the decision will probably come out -- it could come out this year, maybe early 2016. you know, i think that the way that china reacts to that decision and the way the aca and -- the asean countries responded will be something that we should try not to be surprised by. that is why we flagged this in the report. it is something the american foreign policies should be all over. we should be working the traps -- the traps in capitals throughout the indo pacific so that we are not surprised.
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>> burma policy has historically been not partisan, but highly divisive. when aung san suu kyi came here she had good meetings with the president, good meetings with senator mcconnell. is that bipartisanship and cross governmental consensus, is that in jeopardy? >> the answer is, i don't know. as you mentioned, the most interested guy on the hill is now the leader of the senate. senator mcconnell. he has been a close follower of the developments there. -- in myanmar. he has a very firm point of view. the last six months of last year, as myanmar -- and this is not surprising, if
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we watch southeast asian history , when reform movements get announced and start to move forward, they also, the governing body, can also start to pull back. this is one step forward, two steps back, which we've seen in many places. i think we've seen that in the on mark. -- in myanmar. republicans on the hill have in particular expressed real concerns about this. there has been on accelerating expectation -- been an accelerating expectation that we are concerned about on the hill that of these elections thick -- take place without aung san suu kyi being able to run in them, we might have to take action against myanmar. that really puts a lot of risk on the table for the obama administration's foreign policy plans. part of what i think the obama administration felt good about accomplishing was moving forward with the engagement and one of the key ingredients of that being able to move forward was
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sitting down with all 10 leaders and foreign ministers, which was predicated on normalizing and opening relations with myanmar. so, mike, i am not sure that it is bipartisan. i think that the administration has played a responsible role in here. our ambassador in rangoon is a former csi actor obviously has his act together. hey, derek. but i think that the administration really needs to work hard on the hill to make sure that they are not sort of unrealistic in their expectations, but that we do have a very nuanced and effective advocacy for human rights and democracy in myanmar.
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because if we don't lead with those points, we will lose a lot of ground in asia. and i would just make one point here that i think is important. if you look at trends that i think are really important in asia, across asia, southeast asia is a leading trend for the assertion of a growing middle class, a middle class that is going to grow from about 500 million people today to 3.2 billion across the indo pacific by 2025. and that middle-class, we can see them sort of putting their issues forward in southeast asia which they are doing through elections, which is very positive. but they are challenging incumbents and challenging the role of traditional centrally-controlled governments. they are asking for more transparency, more involvement. i think this is a trend that will affect all of asia over time. >> thank you all for coming. we are looking at two years where relations across the
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pacific are hitting some really critical turning points on the -- on tpp, on the korean peninsula, with china. precisely when washington is entering into what will probably be one of the most divisive and contested periods of our recent political history. we are making an appeal. we hope that you all agree. every piece of this report contains the hope that we should be working together to keep our interests in asia and our success over several administrations moving forward. if you look at all the elements we are talking about in these policies, very few began with president obama, very few began with president bush. a lot of them go back to clinton. there is an awful lot of continuity and investment here from both parties. we are hoping that people keep that history in mind and our interests moving forward together. thank you all, have a happy new year. we hope to see you on the 29th. thanks. [captions copyright national cable satellite corp. 2015] [captioning performed by national captioning institute]
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>> c-span recently sat down with john conyers. he is the longest-serving member in the chambers. congressman conyers discussed his new role and what some of his new responsibilities will be. here is a look. host: joining us from detroit is the incoming dean of the house , representative john conyers from michigan. good morning. guest: top of the morning to you. host: tell folks a little about the position you are about to assume. tell folks how one becomes the dean of the house. guest: well, the first requirement is longevity.
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the dean of the house is the longest-serving member in the house of representatives, and he has the distinct honor on opening day, january 6, to swear in the incoming speaker of the house, which is a constitutional office. even though the present speaker of the house is going to be the same one, he will still have to be sworn in again. that's where i come in. host: so, you will do that today. to swear the speaker in. tell us a little bit about the longevity aspect of it. you come to this position taking over from representative dingell. tell us a little bit about taking over for him and the fact he is a fellow michigander as well. guest: not only a fellow
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michigander. his father and my father were good friends. he and i are good friends. he was once my congressman, and i have been talking with him about this job. the important duty is of course on opening day, when we swear in the incoming speaker of the house for the next session of congress. host: so, you have been talking to him about the job. what kind of advice has been given to you about it? guest: well, he has given me some good advice. stay calm. get your swearing-in statement together so you can have the incoming speaker raise his right
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hand with you and say that he will support the constitution of the united states, and some other things. and we will be all set. host: representative, you become the african-american to assume first this position. what does that mean to you? guest: i think it is a high honor under any circumstances, but i think it is even more significant that of all the members in the congress, i am now the longest-serving, and the first african-american to hold that rank. i value it, and i'm very proud of it. host: with your new platform as dean, even after you do the ceremonial aspect of it, do you use your platform to talk about race issues, to talk about other issues near and dear to you? guest: absolutely.
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the dean of the house has a special recognition. and it gives a little more added authority to the positions i take, so i will be very carefully assessing what i say and what positions i advocate as the new dean of the house. i follow a very distinguished member of congress, who was the dean for a long time himself. he is stepping down. of course, his wife is replacing him, debbie dingell. we are looking forward to working with her and the entire michigan delegation. host: as you become dean now, do you get any privileges with that? better office space, your choice of committee? how does that work? guest: we have been looking to
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see if there are any perks laying around. guess what? we haven't found one. host: but you are the longest-serving member now. freshman class coming in especially with this because you hold the title of dean, what advice would you give the freshman class, being the longest-serving member? guest: well, i would advise them to be very careful and thoughtful about the books that they cast -- the votes that they cast, and that they want to realize that every vote they cast the comes a part of our -- cast becomes a part of our congressional history and we , don't want them to go and get into a mood or into a group in which they will be saying later on that they were sorry
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that they were running in a direction that they didn't really support. host: joining us, the longest-serving member of congress, the dean of the house of representatives, john conyers from michigan. thank you, representative. appreciate your time. guest: it is a pleasure being with you. have a good new year.>> john conyers will be the new house dean. 114th congress gaveling in tomorrow at noon eastern. we will see the swearing-in of members. watch the house live on c-span and the senate live on c-span2. the association of american law schools wrapped up its meeting in washington earlier today, and next we will hear from law professors on the obama
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administration and the separation of powers, focusing on the use of executive orders and whether the president has overstepped his executive authority. this is an hour and a half. >> good morning. it is not :00. we will get started. welcome to the 2015 academic program, the topic, dysfunction during president obama's administration. i want to thank the committee for selecting this program and the staff for all of their hard work in putting together the conference. i am supposed to say if you things before i give my opening remarks.
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we value your feedback. please take a moment to fill out the form at the conclusion of the program. i want to acknowledge a professor for coordinating this program with me. the idea for the program was born out of our own work as immigration scholar, and in response to the conversation over the legality and legitimacy over president obama's executive acts in immigration, particularly those to defer the exercise of the removal power against certain undocumented
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immigrant youth, also known as the dreamers. we anticipated that by year's end president obama would likely act a second time without congress to attempt to address in some ways the persistent problems of the very broken immigration system in the face of persistent failure of congress to adopt immigration reform in over a decade. this indeed happened on november 20. you probably heard about that when president obama announced announced cases of executive acts that would not only expand the deferred action program, but also expand it to undocumented parents of children and or other measures less novel shall be discussed as part of this program. and surprisingly, this move has proven extremely controversial and political, leading to denouncements against congress and lawsuits challenging the gallery of the act, including one by nearly half of the state join in the litigation. so in this program we wanted to have a conversation immigration
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executive acts into a broader context and include other areas of law such as health, environment, gay rights, national security where the president has also been accused of acting as an imperial president. what makes today's program particularly exciting, therefore, is that it is bring together scholars writing on issues of separation of powers federalism, administrative law and legislation, and writes across various area of law to examine whether and how the critiques waged against president obama have any merit. so as you know this is a day-long program. thank you so much for showing up in the morning. it consists of four different panels. the morning program considers the constitutional structural issues raised by president obama's ministrations reliance on his executive administration power to govern the first in which we moderated by the professor, consider separation of powers and the sick and which
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we moderated by me will consider issues of federalism. in the afternoon -- and you'll be having lunch on your own and we hope you come back -- the conversation turned to a rights-based assessment of some of president obama's issuance of sole executive powers to test the 10% of the obama administration has largely acted without congress to expand rights. jennifer will moderate that panel. and the final panel, we could not do this, we are going to be looking at the immigration example as a case study to keep and expand the conversation to engage both the structure and the rights-based critique of programs like deferred action and the recent expansion of program. so we hope you stay for the entire program or as much as you can. finally, let me say how pleased i am that many of the papers presented they will be published
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in both the chicago law review and the american university law review. so thank you so much for coming today. [applause] >> welcome, everybody, and thank you to the alas and their organizers for their precedents in organizing this conference. we want to begin our session with a look at separation of powers. recent uses of executive action have triggered accusations that the president is acting imperiling like a king or as a lawbreaker. that can trigger political environment in which congress has filed a lawsuit is to present an executive overreach in health care. 24 states are trying to limit obama's executive actions in immigration law.
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similar limits have been leveled against obama's environmental policies. this panel will examine president obama's administration through the lens of separation of powers in order to assist the major scope of his executive actions. our speakers will explore these issues through right of policies including immigration, health care, and tax policy. i will introduce our speakers briefly and then have them share their papers in the order in which they are seated. first, we have a professor who is a professor at widener university school of law and also the director of the law and government institute. she is known internationally for her scholarly work on immigration or scholarship examines the government procedures in deciding who may enter into may remain in the united states. she's especially studied immigration agency posing naked relationship between the three branches of government and setting, implementing, and interpreting immigration law. her work draws on administer law, constitutional law and civil procedure as well as comparative study of procedures in other countries. she received the 2001 excellence
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in faculty scholarship award and was elected as a fellow for the national administrative law judiciary and the abs. her talk it is entitled an unexceptional aspect of the battle between president obama and congress over immigration law. next we will have professor chad deveaux, an associate professor at concordia university school of law. professor deveaux focuses on federalism and the separation of powers and the role of constitutional law in private law litigation. his work addresses the role of the judiciary and the system of checks and balances. he teaches constitutional law and contracts or which he won an award at concordia. his talk is based on research into debt ceiling step in congress and is entitled the fourth presidential power come analyzing the debt ceiling standoff through the prism. next will have professor william marshall, who was the professor of law at the university of north carolina law school. professor marshall has published
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extensively on freedom of speech, freedom of religion, federal courts, presidential power, federalism, and judicial selection matters. he teaches classes in all of these subjects. he was previously deputy white house counsel and deputy assistant to the president of the united states during the clinton administration. he has also served as the solicitor general to the state of ohio. on a recent publication. our last speaker will be a professor is an professor at fordham university. he writes in the areas of administrative law and immigration law and teaches courses in those areas as well. professor received an award in 2014 and has been named one of the best lawyers under 40.
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his talk is studying the role of bureaucrats. without further i do, i will turn it over to our first speaker. >> thank you so much. is my pleasure to start off our session today and be a part of this panel. the topic of separation of powers certainly has been gaining attention lately and the push and pull between president obama and congress. in my opinion, often too quickly it toils down to simple descriptions that pit the president and congress in the dick york term battle award death mats -- match of the century. strange to say the least, i
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would like to start the session by focusing on an aspect of a recent high profile separation of powers dispute that on further examination is not really very novel or noteworthy. you may be thinking that is a bad idea to start your talk that it is not noteworthy. but my point is the hype may not accurately reflect the situation. as has been mentioned, president obama recently announced actions affecting immigration law. he proposed to establish a process to allow for the parents of u.s. citizens or children or multiple permanent residence children with green cards, to apply for something called deferred action, which is a promise not to deport for a certain time. what the government is saying would be saying is that you are
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not enforcement priority for us and we will issue documentations that shows we promise not to deport you. he also proposed to expand the deferred action for the child arrival program, and that allows individuals to apply for that same program, not to depart. he called for new priorities and proposed changes to inefficiencies of iraq a c among some other things. at is a very brief summary of the substance of what president obama would like to accomplish. procedurally speaking, what exactly did he do? he did not issue any executive orders. he did issue two presidential memoranda, but that addresses only two narrow issues of
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substance. does only address the bureaucracy and promoting better integration of immigrants into society. the announcement that parents of u.s. citizen children and lawful permanent residents children could apply for support, those are in the form of agency guidance documents. the actual documents are simply memoranda from the secretary of's homeland security to lower-level agency officials directing the agency to observe certain prosecutor tutorial -- prosecutorial discretion priorities. and so i have to show you real quickly the november 20 memoranda that establishes the program for parents of u.s. citizen children. it has homeland security
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letterhead on it, shows memorandum for the director of u.s. gis, and from the secretary of homeland pretty. what exactly is this? it is an agency guidance document and guidance documents are not legislative rules that are used heavily throughout administrative law. in administrative law, the term rule is usinged broadly. legislative rules are legally binding. think regulation. nonlegislative roles like these memoranda are not. a legislative rule must follow it or the formal or informal rulemaking provisions of the administrative procedure act and the informal rulemaking is much more -- the path is the agency publishes the notice of
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the proposed rule in the federal register and then allows the public an opportunity to comment on the roles come and then the publication of the final role follows. as a consequence of the procedural shortcut, they are not legally binding on the public. that means a regulated party may argue that a different rule other than one contained in the guidance document should apply in any enforcement. all types of agencies use nonlegislative roles. nonlegislative roles are the workforce of the executive branch. guidance documents allow agencies to the idea for the
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communicate more frequently with regulated partners. a policy memorandum like the one i showed you simply expresses an agency's enforcement plans, plants go about enforcing the law. agency guidance documents are controversy, but that has nothing to do with president obama or our current congress. the use of nonlegislative rules has been controversial for decades. there been efforts to reform the rules in a 1960's, 1970's, 1970 80's/. wire the controversial question mark when an agency exercises the policies delegated to it through the mechanism of a nonlegislative rule, the concern is the nonlegislative roleule
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binds, even though a policy memorandum is not the memorandum -- binding on the public parties will probably conform to what the memorandum says because the agency is expressing its enforcement plan, the path of least resistance is due to what the guidance document says. the fear is that the rule has a legally binding effect despite it is not the subject of notice and comment rulemaking, that it is a legislative rule. so for example the d.c. circuit held the federal communications commission should have used rulemaking instead of an interpretive rule to introduce a new requirement that allows landline telephone numbers to be transferred as wireless carriers. we all remember this. because of the new requirement did not more than supply crisper and more detailed lines, that authority being interpreted, the
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d.c. circuit held it did not properly invoke a notice to rulemaking. the d.c. circuit also regularly hears cases where people are challenging the use of a role in a policy memorandum, and the court usually looks at language of the policy statement and the agency's the hager, although i should say that d.c. circuit case law on this subject is anything but clear. if the document does not use binding language and agency does not treat the rule as binding, the rule may be nonlegislative. in the immigration context, a policy memorandum addressed the issues affecting the adjudication for a specific immigration benefit was held to be a true nonlegislative rule, that is, the procedure matched what the agency was trying to accomplish because the guidance
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document was not whining on its face or apply. the memo itself stated only intended to provide guidance to lower-level adjudicators and the court was able to point to education outcomes that evidenced flexibility in application. i would be remiss if i did not mention the supreme court is considering a challenge to a d.c. circuit doctrine that commands an agency may not change a long-standing interpretive rule unless it uses notice and comment rulemaking to change the look long-standing interpretive rule. so as the examples show, it is common in an action for a regulated party to challenge an agency's enforcement action as based on an -- a nonlegislative role. in the lawsuit mentioned earlier, with a group of states has raised this exact challenge
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in a lawsuit challenging obama cost recent executive actions, in addition to other challenges, as a violation of a clause the state is asserting procedural violations under the administrative procedure act and the government has argued in response that the men are random is a properly legislated mold. this administrative aspect of president obama cost immigration executive action is nothing new. it is not unique to this president, to these times, or to immigration law. there is a trend in immigration law to come up with names that symbolized the matchup of immigration law with other areas of law. the most famous being "crimigration." this represents where two's seemingly diverse law areas have intertwined.
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i would love to point the term "adminigration" law, but that does not fit my talk today because what my point is and what i hope i leave you with is the idea that what i have been talking about today is just a plain old administrative law topic. at least this concern about executive power and the obama administration is not exceptional. in conclusion i do not need to say that president obama cost recent executive actions raise known newsworthy issues or that administrative law issues are not important. i think that procedures used by the executive branch in enforcing immigration law is an area that is ripe for inquiry. we need to examine comprehensive lead the procedures that a company executive power in immigration law and i think as immigration law scholarship rose , to separate out the roles of the president and congress when
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it comes to immigration law, we will inevitably consider the extent of the president's inheritance authority over immigration law. one question i have to leave you with something to think about is if the president has inherent authority over immigration law what is the source of any procedural restraint against the president's action? those are newsworthy questions about whether and agency properly formulated a nonlegislative role is not. thanks. [applause] >> thank you. next we have professor chad.
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>> my paper which recently was published in the connecticut law review focuses on what is the most extreme example of legislative dysfunction during the obama years, the reoccurring that standoff between congress and the white house. as a way background congress prescribed the federal budget through a panoply of appropriation laws. the statutes struck the tragic have the federal to subsidize a mega projects and programs, and since the founding of the republic congress has passed these acts with full knowledge of funds and build in federal coffers to tax revenue will prove inadequate to cover the required expenditures. when this happens, other laws direct the president to periodically borrow enough money to cover the shortfall, and this includes the manner in which subsidized payments on the national debt. but congress' appropriation laws
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stand in conflict with the debt ceiling law, which caps the month of debt the government can go at any one particular time. since enacting the statute in 1917, congress has routinely prescribed budgets maintaining spending that so plainly exceed projected revenues that they will inevitably require the treasury to borrow funds in excess of the debt ceiling to make good on our obligations. and for decades congress has approved increases to the debt ceiling virtue as a matter of course every time we crept close to the borrowing limit. and all and all this is a very good thing because of the largest borrower in the world, a default by the united states government would in all likelihood of triggered a worldwide economic depression. all that changed in the summer of 2011 when the republican majority in the house of representatives elected to weaponize the debt ceiling and use it, use the threat of a federal default, and the resulting economic and social calamities i would result to extort political concessions from the white house.
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they repeated this gambit again in 2013 and to a lesser degree last winter, and despite representation from the contrary by majority leader mitch mcconnell, it is quite likely that this summer when the federal -- when the available proceeds, when the treasury's funds dwindle we may face another debt ceiling standoff. today the seminal academic analysis of the standoffs was provided in an article in the connecticut law review to my professors neil buchanan and michael dorf, who i should point out have been very helpful in my own research. they refer to the situation as an incipient constitutional crisis. they refer to as the trilemma. and basically if the debt ceiling is ever, if the debt ceiling is ever breached, the president will be forced to choose between three options
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all of which would be directly contradicted by the statute. he will be forced to either unilaterally cancel federal programs, borrow money in excess of the debt ceiling, or unthinkably, raise taxes beyond the levels prescribed in the internal revenue code. and the professors posit that any of these would have a further consequence, that the president would be forced to violate the constitution because whatever option he chooses will be intrinsic contradiction to statute and, therefore, he would've failed to execute a duly enacted law of the united states. i attempt to analyze the presence options in the debt ceiling standoff under the task prescribed by justice jackson in his opinion in the youngstown steel seizure case.
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i'm sure most people in the room are familiar with the case youngstown steel involved president truman's unilateral seizure of the american steel industry when labor dispute threatened production during the height of the korean war. justice jackson offered his concurring opinion which this up -- the supreme court later unanimously endorsed as the appropriate standard of analysis for questionable cases of executive exercises of executive power. justice jackson asserted presidential powers are not fixed but they fluctuate depending on the disjunction or conjunction with acts of congress. he offered his famous template to analyze exercises of presidential power. in the first zone the president acts pursuant the explicit or implicit congressional -- explicit or implicit congressional authorization. in this zone the president's power are at their apex because he has all the powers article to all the powers article to get him and all the powers that congress has authorized to delegate to them under article one. in the second zone we deal with
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situations where congress has chosen to remain silent on the subject. this is the nether world, a zone of twilight in which the powers to the dispute are between the president and congress are uncertain. justice jackson advised us in this on congressional indifference or acquiescence may generally be seen to invite independent measures, measures on independent presidential responsibility, and justice jackson goes to great pains to point out that the mode of analysis or went in and come when you exercise the potential power is appropriate often depends on the imperative of events, in other words real-world consequences of a failure to act. zone three involves a situation where the president acts in the face of explicit or implicit congressional rejection of the exercise of power. in this zone his power is at its lowest to the power cannot be
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sustained if it falls within a propulsive presidential power authorized by article ii, for example, if congress tried to to restrict the president to issue pardons or something of that sort. justice jackson concluded the steel seizure was in the third so because enacting what became the taft-hartley act, congress had considered a version of bill that would authorize the president to seize the industries in emergency situations such as steel seizure, but the version of the bill they ultimately enacted omitted such a language, and from this justice jackson inverted implicit congressional negation of the exercise of such power. further, because seizing american industries could not be regarded as a preclusive executive power offered by article ii, the steel seizure was constitutionally illicit. so what is the president to do? what does youngstown steel tell us about the debt ceiling
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standoff? at first blush it's in which all three of the presence options fall into the third zone because the unilateral cancellation of programs raising -- borrowing money raising taxes are all prohibited by statute. and certainly the powers to tax and spend, not powers exercised by the present irrespective of the will of congress. the youngstown and its progeny tedious when multiple stages. on the president's powers, the scope of his authority cannot be gleaned by looking at any single law in isolation. the correct analysis requires careful consideration quote of the general of all congresses commands used collectively, not in isolation. collectively, the debt ceiling the situation faced by the present into the of the debt ceiling is ever reached would not fall within any of the three zones, because each of the three zones contemplates coherent congressional instruction.
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congress can explicitly and implicitly authorized an act choose remain silent, or it can explicit or implicit indicate the exercise of power. the debt ceiling standoff, if the situation ever comes to fruition, the president will be faced with paradoxically faced with contradictory instructions. you must implement these programs to build a bridge, that aircraft carrier, etc., but you may not have the money to do so. short of multiplying come it would be impossible to comply with both commands. the president must choose one of the three laws to break in order to save the other two. i would suggest this requires expansion of justice jackson's taxonomy to include a fourth zone coming so that will do with situations that quite frankly had never happened before, where congress issues contradictory commands to the president. so what standards should apply in this fourth zone?
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justice jackson himself acknowledged that congressional acquiescence invites independent measures on presidential responsibility. ordinarily, this line of reasoning only applies in the zone of twilight because ordinarily when congress tells the president to do something or not to do something, that such a command comes without, confers no discretion. the president must obey and execute the commands issued by congress. but when congress has issued inconsistent, contradictory commands and has steadfastly refused to clarify or prioritize which command should proceed the other in event of a conflict, in fact, it has refused to acknowledge that a conflict exists, in my view that act by definition, that acquiescence invites independent measures on
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presidential responsibility. it empowers the president, invests the president with the discretion to choose -- to choose which of the commands must be sacrificed. the professors compare basically assert the president and the situation is faced with sophie's choice. you must choose one of the three laws to suck vice and noted to save the other two. i don't arrive at this conclusion easily. in fact, i argued in my paper that this sort of abdication of core legislative responsibility to the president is an existential threat to the long-term stability of our democracy, and i wish i'd more time to talk about but i draw heavily on the work of juan lynn, the late yale political scientist, who talked about how tripartite government often face these conflicts. but i think, you know, as the
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maxim goes, anything follows from a contradiction and there's nothing in the statute that prioritizes one command over the other. now, having said that, i'm not here, i'm not sure suggesting the president should unilaterally raise taxes. i think i would be an act of political suicide. but i think the constitutional standpoint congress abdication has authorized that extreme action, at least some illegal vantage point. to conclude, i just want to leave you with the words of warning that justice jackson ended youngstown steel with. you said the thinking of the crisis faced in the korean war and particularly cohesive power to legislate for emergencies belongs in the hands of congress. but only congress can prevent power from slipping through its fingers. by engaging in these standoffs and possibly doing so in the future, congress potential allowed core legislative powers to slip from its grasp by forcing the president to confront an emergency of
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congress' own creation. thank you. [applause] >> thank you, chad. next, we have professor wayne marshall who is taking a professor the university of north carolina law school. >> thanks, all, for coming up today and thanks to the organizers of this whole program for putting on a really good program, but i thought it was going to be canceled because i was reading in the paper that mitch mcconnell has decided who wants to work with the president in the next couple of years, and so does speaker boehner. however, congressional dysfunction over. we don't need to be a good we can all get together and just
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move on. the interesting thing about presidential power, over the long run as opposed to other constitutional issues, is people's ideas evolve and change on constitutional issues. whereas with presidential powers you can usually pick the exact date where it changes. on inauguration day, on inauguration day in 2009, a lot of people who really loved presidential power that it was the worst thing imaginable. a lot of people who really hated presidential power thought it was the greatest thing since sliced bread. that's the kind of background we have to deal with when thinking about president obama's exercise of unilateral executive action. i happen to support immigration reform very strongly. i happen to support a lot of the other substantive goals of president obama, but i want you think as we're going through and talking to some the issues today, imagine a republican president who can't get through a repeal of the capital gains
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tax and decides i don't want to enforce anymore, so makes an announcement that nobody has to file a schedule d. and you don't have to declare any money he made from capital gains. would that be constitutional as a collateral enforcement decisions? we have so many other tax issues to enforce, says the president i don't really have to bother to enforce the collection of capital gains tax. let's think about something like that as background when we're talking about unilateral presidential action. let's also think about the question of congressional dysfunction, but exactly what is congressional dysfunction? what does that mean? maybe i'm thinking back to seventh grade, but i thought the design of the constitution was to create dysfunction, was to create checks on things
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martin van buren's administration was met with folks who started off by saying we need to do everything we can to make this presidency fail. i want to step back for a minute. this particular congress is one of the most irresponsible in history. i have no doubt that that's true. mitch mcconnell starts off in 2009 by saying he's going to do everything imaginable to make sure that the president's agenda was not passed them and deployed rope-a-dope on health care for the first two years, saying, let's keep putting it down the line, let's come to compromise when there was no strategy to compromise.
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but even all of that as background, does that mean congress did anything wrong? there is a reason, after all why an out of administration party would want to do everything to obstruct the party in power, and that's because they know that the party in power will build on its success is for the next election, if it's a reelection of a current president, or to increase its power, congressional authority in the midterm elections, or to elect a new president of the same party. this is called the permanent campaign. the phenomenon that we currently face where each party is consistently looking forward to the next election. so the idea that an out of power party is going to do everything they can to cause some breakdown in the in party's agenda and
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should not be unexpected. is it inappropriate? why should that party try to help the current policy retain power? and finally with respect there's another particular example where i think is really out of place to suggest that congress is trying to block a president's agenda on legislation, it is being obstructionist, because i thought legislation was supposedly the province of the congress and not the president. so there's a reversal there if we switch that around. so that's a little bit of some of the reasons that i'm so but skeptical as to this notion that there can even be something called congressional dysfunction in the sense that it suggests that congress is acting somehow unconstitutionally when it doesn't enact or follow through with the president agenda. there are areas of support giving the present power.
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one of the nationalist theory where the president is the only nationally elected office, and so, therefore, when the president is elected, and that means that he is is invested with the power that regional officers do not have. david posner has a brilliant article coming out in june back, i guess it's out now, saying that the president should have the power for self and self help. when congress acts badly the government step in and drop what congress is doing to make things, to be able to accomplish his agenda. but in the short moment some have left, i want to think we really want to add to presidential power in her current framework? the president already has amassed far greater powers than the framers ever would've envisioned by a number of circumstances that are just a natural evolution of the office. one is that the president can
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act expeditiously when congress cannot. that is invested the presidency in power. the second is the media, and the focus of the country is often on the white house and not on the capitol, because it's easier to take a look at one person as the embellishment of the nation as a whole and that has invested the presidency with power. the president has more information at his or her disposal than congress has. the president has enormous resources of the administrative state and all that it can do and after chadha the congress can either put some other kinds of limits on the president's stability to manage that state for the president own political purposes. and, finally, and going to come back to this in a moment, there is a one-way ratchet with respect to presidential power. unless you deal with a case like noel canning where presidential power is subject to judicial review, that's not often the case. often the legality depends on what previous presidents have
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done, as the argument that the office of legal counsel looks at, and that just keeps on increasing. so whether we need to actually create and invest the presidency with more power than it already has seems to me to be pretty controversial. what exactly are the harms of suggesting that the president has extraordinary power? with respect to the theory, for example, to say when congress acts to obstruct the president should have additional power to be able to overcome that obstruction, that is what checking is all about. paul wellstone was going to do everything he could before he died in a plane crash to stop the iraq war. that would've been congressional dysfunction, or would've led to congressional dysfunction had he succeeded in doing that. does that make it improper, or is that exactly the kind of
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thing that we want a congress to do when it is facing a president with which it disagrees on matters of substantive policy? second, the interesting thing about congressional dysfunction and using that as a reason to advance presidential powers is actually it encourages the president to short-circuit the political system, because the president, instead of going to kansas and into montana and going into texas and going into all the places of the state with which there is opposition, he can just say, they aren't letting me do anything, i need to take these powers on my own. if you don't like that example, imagine a republican president who does not want to go into michigan or minnesota or massachusetts and say that i just want to be able to do anything i can, because that congress isn't doing anything on its own to help me. think about the predicament that puts congress in.
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if congress opposes to strong what the president is doing, the president can say, at this point i can now just circumvent their opposition. or if congress says, ok, i will do some of what you want to do but i want to curb your enforcement powers in one manner, or curb your authority in this particular area, the president can sign a law subject to a signing statement which has he's not going to abide by any restriction on the president's authority. this is a centering of continued power into the presidency think we all should be concerned about, no matter how much we agreed with the substantive policies involved. we do have a choice here. one is -- and they're not good choices. one is between a dysfunctional federal government, and the second is with increased centralized power. i think that the structure of the constitution suggested that we should live with some of the
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former, the dysfunction, in order to prevent too much power concentrating in one branch. let me go back to the middle sorry, back to my beginning, and talk about senator mcconnell and speaker boehner. times do change. adjusting constitutional law to deal with four or six years of history isn't necessarily the best way to construct a constitutional law to take us through other types of times. thank you. [applause] >> thank you, professor marshall. next, we have professor joseph landau who is an associate professor at fordham university school of law. >> going to switch it up so i
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can reach the mike. thanks so much and thanks so much to raquel. so i'm also going to be talking about the president's recently announced deferred action programs and i am also goign to be talking about separation of powers. but i'm going to be talking about it from a slightly different frame and with some of my co-panelists are using to address the issue. unlike bill, not going to talk about the horizontal separation of powers, relationship between the president and the congress unlike folks on the panel after this one, i'm not going to be thinking about a kind of vertical separation of powers between states and the federal government through the lens of immigration federalism things that come up when we talk about state and local immigration enforcement policies. i'm going to try a different frame. this is a work in progress and the id of this frame is to think about vertical agency relationships within the executive branch. my thesis is that change comes
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not only from the top, not just from the president, cabinet officials, and policy officials, but also from the bottom and from the middle, and that these relationships provide an important set of checks and balances within the agency that both account for the forward movement of immigration law, immigration extreme edition, immigration, but can also provide normative support for maybe not all but i think certainly some of the types of presidential actions that we are talking about on this panel today. so there are two core features of this kind of vertical agency relationships, what i call immigration experimentation, that i want to talk about. the first deals with prosecutorial discretion but not discretion at the top. the kind discretion that lower level officials within immigration and customs enforcement, within citizenship and immigration services, within cbp, within the executive office
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of immigration review, the kind of day-to-day, traditional enforcement that these officers -- they can exercise that discretion favorably at the backend of the immigration process. how did he do that? they do that by dropping a deportation charge, by dealing in or by not instituting removal proceedings in the first place out of respect for the harm that the deportation would cause to a particular individual where the equities are especially strong. and can do so for reasons that can eventually become policy bases across the board in and of themselves for whole categories of individuals who fit within profile. but that's the idea that i'm pushing today. that enforcement decisions are made with certain policy rationales in mind, and when this happens, when this happens time after time, when this happens enough, those policies those policy choices can begin to percolate within the agency and later become reflected in the kind of across the board directives that we're talking about today. this can happen a number of
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different times and ways of looking at a few different case studies and going to talk to one or two with a time that i have. the first involves the situation that was faced by numerous binational same-sex couples, couples in which you have a u.s. citizen and a foreign national in a same-sex relationship where those couples were not eligible for traditional family-based immigration benefits, the kinds that many couples routinely use as a way to get an adjustment of status for the foreign national partner for the foreign national spouse in the relationship at the reason for this of course is the never states that don't respect the rights of gay and lesbian couples to marry. that remains to be an issue but also for many years the issue of
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section three of the defense of marriage act which although is no longer good law, but both of these prevented numerous couples and been living together for a long time for being able to go through the ordinary adjustment process. now, the position of the obama administration for many years was to do nothing about these customs. you could think of this as a horizontal issue. you think we're going to go into court and sue the obama administration or embarrass the obama administration over going to try to get the very same kind of presidential directives for these couples as we see in the context of the dreamers with respect to daca and with respect to the recent transfer program. that would be a horizontal with thinking about this. but the vertical dimension is different. in the vertical dimension you ago, trying to persuade individual line officer to exercise favorable discretion in one case after another. how to do this? in removal cases you try to get immigration judge to delay or close, give a long continuance in the removal case, or maybe get a dhs attorney to drop the deportation proceeding, or maybe try to make sure, go to uscis to prevent a removal proceeding
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from being instituted in the first place. this actually worked. lawyers were able to do this for their clients in case after case and time after time where government trial attorneys agreed to exercise discretion consenting to the closure of an immigration case of the deportation case, u.s. benefits administrators within citizenship and immigration services agreed to defer action. and cases in which the foreign national partner of a u.s. citizen or an lpr wasn't even in removal proceedings yet but was afraid they would fall out of status and potential be subject to removal proceedings. immigration judges within the cio are willing to do the same thing. one case at a time, still going. while the larger lawsuits against the administration just the constitutionality of section three of doma were still in a briefing, we were beginning to see a kind of culture, a kind of time after time almost administrative common-law type decision-making among these
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agency bureaucrats because of this policy reason. eventually, after enough of these cases had been decided this way, we saw a directive from the administration directing lower level officers to grant prosecutorial discretion, favorable discretion for long-term same-sex committed couples. so that's the first feature of immigration experimentation that i'm talking about. there are other examples of this but i will get to any minute but i first want to talk about the second feature which has to do with the separated and overlapping jurisdictions among the various subunits of the executive branch that handles immigration matters. there's a lot of jurisdictional overlap. a foreign national may be caught up in a particular kind of immigration problem that more than one agency can solve. and if you're not able to get a reprieve from one agency, you may be able to go to another and get the agency to give you a different ruling on your particular issue. these are the kinds of internal checks and balances that i'm
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interested in, in which an agency will place a modest check on another agency, exercising a form of intrabranch of oversight if you will. so we saw this in a binational same-sex couple context between oftentimes if a dhs attorney wasn't willing to grant a favorable exercise of discretion, the immigration judge would agree to it, or usgis would agree to defer action. another example has to do with e2 visas. this is a kind of treaty investor visa which the department of state and the legacy ins both shared jurisdiction over interpreting the actual requirements or retained the visa, developing competing interpretations until eventually one interpretation won out over another. another example has to do with mandatory detention programs that were piloted under the george w. bush administration in which line level officers refused to comply with the idea that you should mandatorily detain somebody after the issuance of a final order of removal. so these two features, line
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officer discretion on the one hand, and positive redundancy, jurisdictional overlaps within the agency, i think helps us to see that change can come not just from the top, but from the bottom as well. it also helps to contextualize and provide normative support for some of the kinds of a broader prospects will discretion programs that we are talking about today. from this perspective, presidential action is not so much about starting from scratch and creating a new policy out of nothing, but rather trying to take policy reflects what is already a long-term agency practice, a kind of administrative common law. what presidential action does in this scenario is rectified in consistencies, inconsistent behavior among various white -- line officers who don't treat like cases in like ways. we could even argue the presidential action in this regard is replacing a kind of absent judicial review because we know that these kinds of enforcement decisions are
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non-reviewable in court. so this vertical dimension is different from the standard horizontal president versus congress analysis that we generally bring to analyzing these presidential policies. it's also different from the conventional story that administrative constitutionalists often tell about the law inside the executive branch. a lot of the literature sees the present as a decider in chief whose actions of trickle-down into the very spent ministry of arms of the agency, empowering those agencies to take on more different and greater action. this particular kind of lower level agency discretionary power is hard to get at because the decisions are not reported. we can't just go into west law or lexis with the reporters or what have you and learn about them. it's over the attorneys on the ground who have the most amount of information here. i should be clear i am not saying they horizontal approach, the separation of powers, the limits of presidential power the limits of congressional power, and the fit between the
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two is not the right starting point. i think it is the right starting point, but i just don't think it's the only frame. is the interplay between the president and the bureaucracy that can bring this important additional lens to the discussion that can complement the frames we already use and help us normatively solidify the validity of those presidential initiatives. thank you. [applause] >> thank you, professor landau. what i would like to do is begin opening this session to questions and answers for our panelists. they have given us some rich food for thought and some points of disagreement, which always make for a fun discussion. i thought what i would you start by posting one or two questions to the panelists, and then you're welcome to approach the mike, if you'd like to ask your own question. i would just ask when you do approach the mike if you could
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begin by defining yourself by name and affiliation so we know, we all know who you are. my first question for the panelists harkens back to something that professor marshall said about how your views on separation of powers might change beginning on inauguration day. and i wondered for our panelists, to what extent they think that procedural concerns whether they are expressed by concerns about separation of powers or violation of the administrator procedure act are, in fact, over these very controversial areas like immigration, same-sex marriage health care, and the budget? >> the first thing i would say about that is, i think there is a misconception among the public and members of the bar that the president that that governs the
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relationship between congress and the present is probably the best court. a very, very small fraction of the precedent is there really governs how the different branches of the government interact comes from judicial opinions. the overwhelming majority comes from what has happened in the past and how, tomorrow madison's words, how constitutional liquidated. and so i share bills concerns that overtime power has gone to the present that was never intended to be there. take youngstown steel, for example. the steel seizure case was seen as the symbol work on restraint of executive power but actually the facts just otherwise because the background facts involve the first, what really was the first ever unilateral presidential invocation of the united states and a full scale war that wasn't previously digital that i declared by congress.
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sense of that time, that has become the norm. so i would fear i guess that and this is not a party affiliation. like bill, i much more support policy wise, can support much of what president obama wants to achieve, but i worry very much that acts that he may feel pressured to take in the face of a presidential dysfunction may set precedents that future presidents will use with which i would disagree. and over time they may, like the war power and how we engage in war in this country, might become the norm. >> just want to add sort of against, that this is actually i think we do need to be careful in terms of talking about separation of powers with too broad a brush.
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immigration law is exceptional and a lot of ways and i think that -- i agree with a lot of the points that have been made and that we need to be careful and not change our perspective on separation of powers depending under the president is and what are particularly -- particular policy preferences might be. congress has given the president a lot of discretion to enforce immigration laws so i think we need to be careful not to paint with too broad of a brush. in some areas, what the president is doing is not using executive power as much as it may seem. >> to expand on what jill just said, additionally in the unique context of immigration, a lot of the policies that we're talking about -- and, jill, you held up this most recent dhs, sorry, dhs
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memo, i'm forgetting the exact phrase that you used to describe it, but this memo is one in a series of very similar memoranda about exercising favorable discretion that go back between, i mean, this argument has obviously been made. this is something democrats and republicans have done. but this is on a slightly different level within the agency. these memoranda are issued time after time, and they continually incorporate previous memoranda. and so from a certain perspective if we're talking about immigration law and prosecutorial discretion, i disagree there's nothing new here. i think this is both extraordinary and ordinary. but if we want to focus on the ordinary side for a minute, we should recognize these memoranda look very much like the ones that have been issued since the '70s and '80s under democrat and republicans alike. >> yeah. i may have -- [inaudible] good bye.
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[laughter] well, the world is coming back again. with respect to the first question, just think of the fully buster. during the republican years, the democrats said get rid of the filibuster it's the end of the world. the republicans say we need to do it, you flip it around, and all of a sudden both sides take the opposite view, and they're not even embarrassed about it. with respect to immigration, the one question i have is did the president undercut what he eventually did by not just doing everything unilaterally in the first place? and by saying this required legislation and wanted legislation and then when he couldn't get it through all of a sudden say, well, maybe we could just do it by unilateral executive action after all? >> i guess i'll answer that first since the mic's right here, and i don't want any more chairs to fall off the stage. [laughter] i feel like you answered that question in your opening presentation. this idea of self-help, i think it's a two-step process, right? first, you try to use the ordinary mechanisms that the
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constitution created, which is that congress will pass legislation and send it to the president. but when things break -- i mean, you, by referencing the pozen article on self-help, i mean you gave us that argument. when that process becomes so dysfunctional and breaks down so heavily, there are self-help measures that, if used modestly, can be the appropriate remedy to that kind of core constitutional dysfunction. that's how i would perceive it. >> and i'll just add -- i have a mic down here now, so you three can't just -- [laughter] be careful. hopefully, no one will get hurt. [laughter] the only thingi'll add to that is immigration law is very complicated, and i just want to float the possibility that perhaps the president didn't fully realize his own power when it came to immigration law when he was making those statements. >> i'd like to invite anyone who would like to ask questions to please, come up to the microphone. alan? >> alan morris, george
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washington law school. is this mic on? well, i can't tell. i'll speak loud. so, first, on bill's point, in fairness to the president -- i don't care whether i'm fair to the president or not -- i think he said that as a political matter, that he would have preferred to be done. it doesn't give him any power and i agree with that. second on immigration, i urge everybody to read the olc opinion on it. it's extremely detailed, 32 pages. and what's most important about it is, is it told the president or dhs they could not do one thing that they wanted to do and they didn't do it. so it's hard to say that that's self-help in the ordinary sense. it raises much more difficult questions if you start to think about the possibility that the president exercised his discretion not to deport anybody as opposed to justification that he could only deport 400,000 a year including border crossings, and he simply didn't have the manpower and the money to do anything else. but the question i want to ask everybody is what should we think about these situations of
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presidential aggrandizement of power when in almost every one of these cases nobody has standing to take the president to court, unlike youngstown? and how should that have us think about aggrandizing presidential power as opposed to other situations in which most of the administrative law cases somebody can take him to court as they could, of course, in youngstown. >> well, i think the problem i dealt with, there is a possibility of judicial review but it'd be a rather long road. that would be the president would either raisetaxes unilaterally or issued bonds in excess to debt, the authorizing debt in excess to the debt ceiling, those bonds would be radioactive. and when the redemption occurred, there may be litigation and certainly the bond holders, i think, would have a standing on that. and if the president raised taxes, i'm sure there'd be a
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line of lawsuits. in terms of cutting programs that would be more interesting. we have clinton v. city of new york where, you know, the recipient of the program would be canceled probably would litigate and have standing. so i think the bigger problem for my paper would be, um, what i would personally, what i would personally recommend from a political standpoint would be raising the debt ceiling because that does the least damage. it doesn't involve policy -- you don't pick winners and losers when you do that. unlike raising taxes and canceling programs. but it might be a long road before we have any resolution about whether the bonds that were issued were valid and to be -- [inaudible] >> i'm not even going to try . [laughter] >> it's a great opinion -- [inaudible] i think part of the problem was -- i think it is a very plausible argument that what the president did on
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immigration is perfectly legal. i'm not taking the position it's not. it's a perfectly plausible argument that it is not legal, too, on the other side. i agree that the llc opinion is tempered. but i do think that the question you raise is a real one. i mean, what kind of checks are there on a presidency when the courts are not there, when congress cannot effectively police it and when each presidential action builds on another? and that, i think, is the problem with presidential power. and having the justice department being the final arbiter of that might work in some instances, and it might not work in others, and i might look at some of the memorandum coming from the bush administration on some of those kinds of issues to ask how effective olc is as a check. or >> our next question. >> david spence, university of texas.
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question from the perspective of those of us who don't know a whole lot about immigration law and aretrying to processthis debate through other lenses. how is this different from the normal exercise, the question of whether the president is within the boundaries of the normal exercise of delegated power? from my perspective and for some of us in the audience, we're thinking about this as kind of analogous to the epa's rules on climate change exercised under the clean air act after congress refused to pass legislation addressing the issue. and in that case it was, it seemed reasonable to infer that this was within the agency's power to decide under the statute that had delegated it the powers to act despite the fact that congress had failed to act. so is immigration law similar to that? is this really a dispute about when the president's decision is within the boundaries of legislative authority he's been given under a statute? thank you.
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>> jill. >> well, i'll just say it's not exactly like that because immigration law is quirky. you know, to begin with, we go back to some of the founding constitutional law cases in immigration law, supreme court talks about a plenary power belonging to the political branches over immigration law. and as i sort of alluded to in my talk, where immigration law scholarship is going right now is trying to figure out, you know, when you talk about a plenary power belonging to the political branches, how do you divide that up between the president and congress? so the supreme court says because immigration could be an issue of -- it's tied to sovereignty, that congress and the president have this sort of ultra-strong power when it comes to immigration law. so i think any discussion when you start to talk about presidential power and immigration law sort of necessarily needs to include that discussion which would be different from other areas of administrative law.
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>> do you want to answer? >> sure. i mean, there are a number of people in this room who write about this and have addressed this and, i mean, i depress the only thing i would -- i guess the only thing i would say is i would refer you to the olc opinion that's been mentioned and some of the other law review articles and online pieces that people have written about this. i mean, to some degree the question collapses into the previous question because if no one has standing to actually challenge this, we don't know exactly what the supreme court said about deference issues to these types of presidential decisions. but what we do have are legacy doctrines like the plenary power doctrine, and we also have legacy programs from prior administrations that we can look to. the reason why i talk about vertical agency relationships and lower level bureaucratic decision making is because i think that's another way of not just looking, you know, at the sort of head-to-head combat between congress and the president, but to try to understand whether this is something that has long-term expertise built into it by the
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day-to-day activity of the line-level officers. but there's not a lot of judicial opinions on this because, as has been said, there's no standing to challenges. >> thank you. go ahead. >> university of minnesota. so i've always been sitting back in this energy law cluster trying to think about parallels, and listening to you all i wonder then if we think, because in the broader themes of this symposium -- which is really about executive authority which spans from what you're talking about, the sort of, you know, more plenary power to these kinds of things that david just raised where there's actually delegated authority under a statute -- and then there's this additional layer not only of the interagency stuff that you're talking about and the sort of different level within agencies, but, of course, push and pull going on in the courts often where state and local governments line up not necessarily in an immigration context, but in an energy context on both sides of this issue. so the supreme court case that ends up undergirding a lot of how the obama administration justifies the clean air act on
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climate change actually had state attorney generals on both sides in that case pushing. so i guess what i would ask for -- and, again,it may not hold as well in a plenary sort of power context, but if you take the broader context of executive authority or across a number of substantive issues, to what extent does that mute some of the concerns that are being raised in this panel? not so much for the immigration context, but if for others? in other words, as administration changes and as the administrations change because there's so much push and pull going on among the three branches and among different levels of government, perhaps that sort of helps to balance out over time and prevents the kind of seismic shifting in these contexts. >> hari, you had me until you said it balances out at the end.
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i think what it does -- i'm just repeating what i said before -- but i think then-professor kagan's article in the harvard law review talking about how administration can use the administrative state for political purposes is becoming the blue print. and i think administrations are becoming more and more sophisticated about how to use the administrative state for their own political purposes and i don't see congress being an effective check on that. >> thank you. the next question? >> this is directed primarily at chad. i like the youngstown framework that you set up a lot, and i think you're clearly right that when congress is equivocal orexplicitly contradictory that's going to sort of decrease its power and, therefore increase the executive's power if you think of it as like a zero sum game. but i kind of want to push you on giving shape to --
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[inaudible] it seems -- i think there are good arguments for making it more constrained giving it more contours than kind of the contradiction equals all that you presented in the talk. and i guess there are two ways i would think of it, right? one is the -- [inaudible] kind of looks like a variation of the first one because the president can pick one of the three horns, but say some fourth completely different option, then we might have a strong argument. and you kind of couched this in, these are not mutually exclusive, but you kind of couched this in political term but i think we could make a constitutional argument that one of these options would be perhaps less violent to many core legislators -- i think the president raises the taxes, kind of all maybe insane because that's so core congress whereas changing the debt ceiling, borrowing more money might -- [inaudible] >> well, i think so. and -- [inaudible] argue that the constitution itself
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prioritizes these commands. i, i don't see the constitution as limiting so muchas from a practical standpoint. what i would advise the president to do would be to ignore the debt ceiling because the other two options involve picking winners and losers. if you cancel programs, it's going to be hard to do that without being accused of having political bias. if you raise taxes, that has its own issues and then who -- where do you raise them, who are you imposing them on, that sort of thing. so you do the least violence certainly, by unilaterally raising the ceiling. in terms of the lack of, the lack of good standards and rules to govern what happens in this zone, i think that same criticism would apply to the zone of twilight, right? there's not the imperative of events and contemporary imponderables. sometimes i wonder if he got that off a fortune cookie somewhere. it doesn't provide a lot of good
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guidance. so what i would say in this situation is that congress has -- the president's discretion is limited somewhat by what congress has already done. so if he did the unthinkable the politically unthinkable and unilaterally raised taxes, he couldn't do it beyond what was, the minimum necessary to pay congress' bar tab. if he's going to cut programs, the constitution does create priorities there, to be sure. judicial salaries can't be cut. i would say payments that would be required to be made to make good on takings can't be cut. i mean, there are priorities there. but beyond those priorities, i mean, congress has, congress has issued contradictory instructions, and it seems like the only inference you can draw from the legislation is, well, you've gotta figure this out. and the last thing, and i'm
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probably going over my time here, the other thing i kind of wanted to point out about the situation is when you're dealing with this, what you're really dealing with in a way is a situation that simultaneously resides in zone one and zone three at the same time. in the youngstown cases the court has said -- [inaudible] when they talk about youngstown steel when congress gives the president a command, that command by definition carries with it all authorities necessary for the due exercise of that command. well, in appropriations statute , how can that not include lawful is the to the funds necessary to appropriate, to pay for, to pay the bill, right? so in a sense, congress has implicitly authorized the president to access the funds to pay for these things. they have also negated that act. so it seems zone four in one sense occurs when you're in zone one, zone three simultaneously. you know, i think the answer to that, the problem is -- the
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situation is basically, you know, the situation where congress needs to clean up its act. and i guess i'm probably taking too much time. >> that's fine. thank you. our next question, jack bierman? >> jack bierman who boston university -- from boston university. this is mainly directedat chad -- directed at chad also, and it follow on what you were just saying. i just wanted to point out quickly, though, if you are talking about spending money from a lump sum -- [inaudible] supreme court has said there's no judicial review in that, so that would be an option. i think before you jump to the conclusion that you're in this zone four, you want to think about the fact that it's been pretty much of an understanding among the branches that there's no borrowing allowed unless congress allows for that extra borrowing. there's a long sort of common law and state law tradition about borrowing when it's being binding. so i don't think you can just sort of jump to the idea that quickly. and i want to push the -- my main question, you started answering it in your just-previous comment, but i've always thought the youngstown
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opinion is the most overrated in the history of the supreme court. [laughter] when it comes to the twilight zone, the only one where it's interesting, he says that's going to be sort of politics and practicality. and it seems to me that what he's saying is that it's a political question, and the courts shouldn't get involved. and i'm wondering whether you could say a similar thing in your zone four, that when congress issues conflicting instruction, the president basically can be free to pick whatever the president wants to do, and it's up to politics to decide whether there's going to be any pushback on that. it's because -- and, again, you know, because that's basically, i think, and correct me if you think i'm wrong, but jackson said basically it's a political question, not a legal question. >> i think that's largely true although we have a judicial, we have an opinion from the court and a unanimous one that involves a situation in the zone of twilight. i mean, what i would say though, from a normative standpoint is the consequences of a default would be so calamitous that if this actually were to happen, i mean, it's going to be, i think it's a
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situation that the courts can't really resolve, and the only thing this would be good for would probably be kindling for our trash can fires keeping us warm at night. so, you know, it seems like the, what's going to have to happen if we're faced with that situation, the president's going to have to act quickly and do something. and it'll probably -- that'll probably be, it probably won't be a court that reviews what he did, it'll probably be, you know, the next election. >> thank you. we have about ten minutes left so we certainly have time for this question if anyone -- >> keep my question under ten minutes. >> no, no, you're fine. [laughter] >> richard levy, university of kansas. i was interested that none of the people in all thediscussion of congressional dysfunction, no one really talked about electoral dysfunction.
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and it seems to me there's a pretty significant connection between what happens in elections and what congress can get away with doing or not doing, what the president can get away with doing or not doing. and i'd be interested in your comment on the extent to which the problems we find ourselves in can be traced back to the inability of the electorate or the electoral dysfunction that doesn't really discipline irresponsible behavior particularly by congress, but really by anybody. thanks. >> that was actually a big theme in my paper that i didn't really have time to talk about. i approached the problem partly from the vantage point of, i don't know, many of you are probably familiar with juan lens had a famous paper in the '80s called the perils of presidentialism. actually, it was 1990, i think. he does a study of the success rate of the tripartheid separation of powers and compares them to parliamentary schemes, and he says that aside from the united states presidential schemes almost
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always ultimately fail because of the kind of problems we're talk about here. that obfuscation in the legislative branch when there's, the parties are in conflict lead the president ultimately to act outside constitutional constraints and either you end up with a president who is impotent and subject to a coup or one who basically exceeds his constitutional prerogatives, and we have a -- becomes a dictator ship. i know this is probably controversial, but i would say that the real problem we have this those systems, and he really compares our system to latin american countries that have adopted a constitution similar to ours but, again, to borrow madison's phrase, those constitutions are the same on paper but liquidated differently in practice. but i think the big difference is one that's coming to life now in that those countries have multiple-party systems.
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and so when you have multiple parties, usually you have extremist parties. and our system has liquidated to historically where you've almost always had two parties, one right, one to the left, and they both are close to the middle and the area of disagreement, i mean, when viewed compared to other countries, the disagreements historically between bill clinton and bob will -- bob dole, which seemed so substantial back in the '90s really wasn't that great. but what we're looking at now with the tea party phenomenon, i think, is a situation where we may be getting extremist-type partisans into our system, and i have some fear that perhaps we are sort of breaking down into a multiparty system really. and historically, our type of government hasn't functioned well in those systems. so this might be the natural result of that, i don't know. >> on the other hand, and this isn't entirely responsive, it's tangential i'll confess, but
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look at something like deferred action for childhood arrivals, the dreamers, right? they, by nature this is not the electorate, dreamers don't vote but the mobilization not just among themselves, but also mobilizing individual members of congress to push the administration on their behalf you could say that it was a failure in that the dream act didn't pass after many tries. but it's a huge success in the sense that they were able to mobilize in a way to bring about this very important presidential policy and not just mobilize as a single contained, you know protest movement, but mobilize by pulling all kinds of interesting and important levers that are part of the process getting members of congress to weigh in, etc. so in that sense it's not about electoral dysfunction, it's about learning from a very successful case study of well-functioning social movement. >> the answer to your question is, richard, is yes, it's all about electoral dysfunction or at least a major part of it is
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but -- and i think part of that's increased because of the rise of niche media because of campaign finance and because of the polarization that that leads to. that said, i think we're shortsighted if we say this is going to last forever. things do change. political climates do change and even if there's constant polarization on some issues, it may not be the same issues 15 years from now that it is now. and i'm not sure we can create a new separation of powers system to reflect those kind of concerns. >> thank you. we do have five minutes for our last question. >> hi, i'm eric from creighton university. i have kind of a foundational question. let's assume that the congress puts in place a policy that's the law of the land that declares x is the policy. the president doesn'tlike it, so -- does not like it, so the president decides that either the president will not enforce it, he prefers non-x or he'll put in place a separate policy
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and he does so on a programmatic basis. not for reasons that are typically attended to in prosecutorial discretion, you know, administrative finances, things of that sort. and so he really does it because he disagrees with that policy that's in place. my question's a simple one, does the purpose that underlies the president's action bear on the constitutionality of that action, or is it irrelevant? and if it is, is it determinative? >> well, i guess i'll just say, i mean, from my perspective the immigration situation doesn't share the same foundation as thehypothetical that you just proposed because what congress has said is, you know, here are some guidelines but, oh, by the way, executive, discretion discretion, discretion discretion, discretion discretion written into the statute a million times. and, you know, and then here we'll only give you enough money
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to deport a small percentage of the number of people who are here without permission. so in the immigration context, i don't even think you need to get to purpose because i think it's just fundamentally a different framework. >> i mean, your question in a sense, it's a good one to end on because it raises, in a way, the other frame of a number of the earlier questions that folks were asking about thinking about this from a sort of standard almost kind of chevron, if you will, administrative law context. you ask the kind of foundational question about constitutional nonenforcement. and i want to try to be responsive to this, but i also agree that it's hard to think about that question so much in the abstract which, i guess, answers your question in a way by saying, you know, purpose may matter. number one, as jill just said, you know, there's discretion built into this thing all over the place. there are massive resource constraints, as we all know. the immigration prosecutorial
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arm of the executive branch has, you know, resources to deport about 4% of those that are factually deportable. but there is a framework for thinking about this, and there's a whole debate about presidential nonenforcement with kind of functionalists on the one side, and within that functionalist frame one of the questions that gets asked often is whether the issue is ultimately justiciable. so you could contrast, if you will, the prosecutorial discretion of immigration with nondefense of the defense of marriage act. it wasn't forced, but it wasn't defended with the idea that the court could have the final say. here again, as we've established, the court doesn't have the final say. but that is the other frame, and maybe a better frame to some degree, if we're thinking about this horizontally than the admin law frame, and i would answer by
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saying i think the underlying purpose really does matter and really is part of that broader functionalist analysis. >> i have one minute? >> all right. [inaudible] one quick question and one quick answer. >> sorry. i think part of the answer to the question may come from the supremecourt this year in the case in which the president has refused to enforcea congressional statute that's clear on its face. political question has been ruled out. the president says it's my inherent authority, congress says we passed the statute the plaintiff says we want our rights under the statute. so it matters. it's not a question of money or anything else, the president says, no, can't make me do it, and we'll find out what the supreme court says. case was argued november 1. >> all right, thank you. we have a 15 minute break until our next session, so please, thank you -- join me in thanking our panelists for this session. [applause] [inaudible conversations]
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>> the 114 congress gets in tomorrow. republicans will control both chambers. watch the house live on c-span and the senate live on c-span two. follow c-span's capitol hill coverage on television, radio and online at c-span.org stop coming up tonight on a preview of the new congress. white house members talk about the relationship between congress and the white house. then, then glickman -- dan glickman discusses the prospects for bipartisanship in the 114th congress. then, bob cusack on

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